Citation: Johnson and Olivieri v R [2002] NSWCCA 348
Court: NSW Court of Criminal Appeal
Date: 28 June 2002
Judge(s): Giles JA, Dunford J, Adams J
Background
Two appellants were convicted in the District Court of conspiracy to prevent, obstruct or dissuade witnesses from attending a judicial proceeding, contrary to s 325(1A) of the Crimes Act 1900. The alleged conspiracy concerned a plan to travel to Toowoomba, Queensland, and there interfere with two Crown witnesses who were due to give evidence at the trial of one of the appellants on unrelated serious criminal charges.
The Crown case rested on the circumstances surrounding one appellant's arrest in the early hours of the morning in a street near the witnesses' home. When police searched the vehicle he had been driving, they found an array of items including a balaclava, cable ties, duct tape, rubber gloves, crowbar, listening devices, walkie-talkies, torches, and over $7,000 in cash. A fingerprint belonging to the other appellant was found on a battery inside the vehicle, and a credit card and medication box bearing his name were also recovered.
Each appellant was sentenced to two years' imprisonment with a non-parole period of 18 months. Both appealed, arguing the jury's verdicts were unreasonable and unsupported by the evidence.
Legal Issues
- Whether the evidence was sufficient to support a finding, beyond reasonable doubt, that the appellants agreed to prevent, obstruct or dissuade the witnesses from attending trial, as required by s 325(1A) of the Crimes Act 1900
- Whether the jury's verdicts were unreasonable within the meaning established in M v The Queen (1994) 181 CLR 487
Decision
The Court accepted that the evidence was sufficient to satisfy the jury that one or both appellants had travelled to Toowoomba in connection with Johnson's pending trial and the two complainants' roles as Crown witnesses. The coincidence of being found outside the witnesses' home in the middle of the night was too striking to be dismissed.
However, the Court found the evidence could not sustain the specific finding that the object of any agreement was to prevent, obstruct or dissuade the witnesses from attending trial under s 325(1A). The items found in the vehicle were equally consistent with a range of other unlawful purposes. A crowbar, balaclava and torches pointed toward burglary or robbery. The cash could indicate an intention to bribe, or to purchase drugs. The listening devices might have been intended to gather material to discredit the witnesses in cross-examination. Another possibility was that the appellants intended to induce the witnesses to change or withdraw their evidence, which would constitute an offence under ss 321, 322 or 323 of the Crimes Act 1900 rather than s 325(1A).
Because the evidence was equally consistent with these other unlawful purposes, no reasonable jury could have been satisfied beyond reasonable doubt that the conspiracy was specifically directed at preventing the witnesses from attending, as opposed to some other form of witness interference or unlawful conduct. Applying the test in M v The Queen, the verdicts were unreasonable and could not be supported by the evidence as a whole.
All three judges agreed on this outcome, and the appeals were upheld.
Orders Made
- Appeals upheld
- Convictions quashed
- Verdicts and judgments of acquittal entered for each appellant
Key Takeaways
- A conviction for conspiracy under s 325(1A) of the Crimes Act 1900 requires the Crown to prove beyond reasonable doubt that the specific object of the agreement was to prevent, obstruct or dissuade witnesses from attending a proceeding. Proof of a general connection to witness interference is not enough.
- Where circumstantial evidence is equally consistent with other unlawful conduct, a jury cannot reasonably select one particular criminal purpose to the exclusion of others beyond reasonable doubt.
- The Court of Criminal Appeal confirmed that the M v The Queen (1994) 181 CLR 487 standard applies: where, on the whole of the evidence, the jury's verdict is unreasonable or cannot be supported, the appellate court will quash the conviction and enter acquittal.
- Different forms of witness interference are captured by different provisions of the Crimes Act 1900. Inducing a witness to change or withdraw evidence falls under ss 321 to 323, while preventing attendance at proceedings falls under s 325(1A). These distinctions are not interchangeable for the purpose of establishing guilt.
- Finding circumstantial evidence linking an accused to a crime scene does not discharge the Crown's obligation to prove the particular offence charged, where that evidence is equally referable to other offences.
Legislation and Cases Referenced
Legislation
- Crimes Act 1900 (NSW), s 321, s 322, s 323, s 325(1A)
Cases
- M v The Queen (1994) 181 CLR 487